Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-01-14


shall be necessary or proper TO carry into
effect any authority which is or shall be
visited in the said city, OF in the Council
or in the Mayor or Aldermen thereof; to
grant to the officers so appointed or elected
by the Council the powers necessary or
proper for the purpose above mentioned, TO
define their duties; to fix their terms OF
Office, and to allow them reasonable fees
and compensation.
1t is apparent, therefore, that the Coun-
ell is vested with the express power to
create "a Fire Department, y and also 'to
Ordain and enforce such regulations rs
shall be necessary and proper to prevent
accidents by fire within said city, or To Sc
cure the inhabitants thereof as far as
practicable from injury thereby" and it
is also clear that the Council has the cx-
| press authority, the Legislature not having
! provided otherwise, to provide for the APP
pOintmcnt or election Of officers necessary
or proper to carry into effect the power
vested in it to create Il Fire Department, to
grant such officers the powers necessary or
proper for the purpose, to define their
duties, and to fix their terms of office.
|
quoted on page - OF this note.)
If in the exercise Of the powers just men
toned, the Council, in providing for the
establishment of Il Fire Department, deem
I'd it advisable OF proper to provide for the
election of tour officers, to constitute an
official Board to he called the Fire Com
missiOncrs of the City Of Wheeling to
grant To them necessary or proper powers,
and to define their duties, such officers he
ing Il constituent part of the Fire Depart
ment, am not prepared to say that i'll 81
doing, the Council exceeded its authority
or that IN ordinance passed by Council TO
this effect is made contrary TO law. 1t is
! tru, there is no express power conferred
upon Council to create such II Board; nor
can it he said that such Board is indis-
pcnsahlc TO the organization of Il Fire De-
partmcnt, but think such power may be
fairly implied in, or is incident TO the
powers before mentioned rs expressly
granted and therefore, that il comes under
! the second head mentioned by Judge Dill
! Ion.
Let us now enquire into the authority of
! the Council 10 establish Il Police Depart
mcnt, and to create Il Board of Police Com
miSSOncrs. have already referred to the
| first section Of the ordinance in question,
providing for the election Of a Board TO he
called "rhc Police and Fire Commissioners
of the City of Wheeling" The fourth
section of this ordinance is rs follows:
The said Commissioners, with the City
Sergeant and his Deputies, shall conSti
tute Police Department of the city of
Wheeling"
There is no act of the Legislature ex-
| prcSSly authorizing the Council to establish
Il Police Department, III there is in relation
! tOa Fire Department, and the conclusions
| drawn in reference To the latter do not.
therefore apply necessarily to a Police
| Department. If such authority exists it
must arise by iair implication from some
Of the powers expressly granted, or be in
diSprnSlble to the declared object and pur-
pose of the corporation. That Police
Board and Police Department are indiSpcn
sable, is not claimed, and could not he
successfully maintained because the city
government has been carried on for many
years without them. The whole question
| is, therefore, narrowed down to one OF i'm
piled power, and upon this point the re-
! spOndcnts must rest their ease
What then are the express powers con-
fcrred upon Council from which the
power to create Police Board aud cstab-
lish a Police Department can he fairly i'm
! pli,d"
Several provisions are relied upon by the
respondents for this purpose. First-rhc
first clause of fScctiOn - OF the Act of March
! II, l|3G, which Is as follows: "All the
corporate powers, capacities and iuriSdic
! tiOns of said city shall be vested in and cN-
crciScd by the Council unless otherwise cN-
| presSly enacted" 1t seems very plain that
this clause of itself conicrs no power on the
Council, but merely gives Il rule of con
Struction to he applied to other provisions
OF the charter-in other words, it simply
| provides that when any power capacity or
| jurisdiction has been given Ia the city, and
such power, capacity or jurisdiction has not
been lodged III some other branch OrOlliccr
of the city government by express enact
mcnt, then 1t is vested i'll and is to he cX-
erciscd by the Council; this is all that need
be said on this point
Second-The last clause of Section 81 of
the Act Of March II, 1@36: 4 similar
known as the general welfare clause |
and is as follows:
''Gemerally they (meaning the Council |
shall have authority to oTdain and enforce
all such bylaws, ordinances, rules and
regulations mot inconsistent with the
Constitution of the United States or of
their States Us they shall deem necessary
for the peace, good order, health or safety !
of said city or of the people or property |
therein" This general subject may be |
found discussed in Dillon, Municipal |
Corporations, sections BOB 10 .iOG inclusive; !
but he refers to no ease in which. under |
such a provision of a charter, a municipal |
corporation has assumed or undertaken to |
create Offices, provide for the appointment |
or election of officers and delegate to |
them any powers; nor has any case been |
cited by counsel who so ably repre-
Scntcd the respondents. Ifan unrestricted |
construction is 10 be given Ia this clause, !
il by virtue Of its terms, the Council can |
Ordain and enforce ordinances no matter |
of what character, which they may deem |
necessary for the peace, COOL order, health |
ar safety Of the city, no other giant OF
power would seem to be necessary. The |
power thus conferred, is a general one it is |
true hut il is not unlimited. Council may |
prohibit acts prciudicial Ia the peace, good |
order, health or safety of the city or the |
people thereof and it may require some acts |
TO be done which are necessary Ia the |
peace. good order, health or safety of the |
city or the people; and in either c.uSe may /
impose penalties for violation of, or a
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